Shaw v. Pacific Supply Coop.

• Decision Date: 05 May 1941
• Citation: 113 P.2d 627,166 Or. 508
• Parties: SHAW <I>v.</I> PACIFIC SUPPLY COOPERATIVE ET AL.
• Court: Oregon Supreme Court

166 Or. 508

113 P.2d 627

SHAW

v. PACIFIC SUPPLY COOPERATIVE ET AL.

Supreme Court of Oregon.

Argued at Pendleton May 5, 1941.

Affirmed May 27, 1941.

Damages — Pleading — Earnings

1. In personal injury action, loss of earnings must be specially pleaded.

Damages — Impaired earning capacity

2. In personal injury action, impaired earning capacity comes under the head of "general damages" which need not be specially alleged, since it is a direct and natural consequence of a disabling injury.

Damages — Measure of damages

3. In farmer's personal injury action, the cost of hiring a man to perform the tasks which the farmer could no longer perform is not measure of the farmer's damage for impairment of earning capacity.

Damages — Measure of damages

4. In farmer's action for permanent injuries rendering him unable to perform physical labor, the cost of hiring a man to perform the tasks which the farmer can no longer perform may be considered along with other factors, such as the farmer's previous earnings, his age, experience, health, strength and habits of industry, and his life expectancy, in determining damages.

Damages — Impaired earning capacity

5. There is no precise rule by which to measure damages for impairment of earning capacity, but the question is peculiarly one for a jury to be determined in view of the facts proven and in accordance with their common knowledge and experience, though the evidence must furnish a basis for the determination.

Damages — Impaired earning capacity

6. In farmer's personal injury action, evidence that farmer was unable to perform physical labor, that his approximate net income had been $3,000 per year, that his approximate gross income from farm operation had been $6,000 a year, and that he was 55 years old at time of his injuries, and a strong man in good health, was sufficient to authorize jury to make an allowance for impaired earning capacity as part of general damages.

Evidence — Conditions arising from injuries

7. In farmer's action for injuries sustained in automobile accident, testimony tending to show that as a result of his injuries the farmer had become a depressed and melancholy individual where formerly he had been cheerful and alert was not objectionable on ground that the evidence was not within pleadings and

consisted of opinions of witnesses, where complaint alleged and proof showed that the farmer sustained a concussion of the brain, and there was medical testimony that melancholia and depression following an injury were symptomatic of concussion.

Evidence — External manifestations

8. In personal injury action, a witness may testify to his observations of the external manifestations of a person's physical and mental condition.

Appeal and error — Closing argument

9. In personal injury action, record presented no reviewable question regarding trial court's rulings on objections to closing arguments of plaintiff's counsel, where no exceptions were taken to rulings overruling objections.

Trial — Argument of counsel

10. Counsel in argument are not to be denied the use of appropriate illustration within reasonable bounds, but they trespass when they indulge in extraneous allusions having a tendency to excite the hostility of the jury against the opposing party.

Damages — Reasonable verdict

11. $11,500 verdict to 55-year-old farmer who had net income of approximately $3,000 a year, for injuries which disabled him from performing physical labor, was fairly within range of compensatory damages.

                  See 15 Am. Jur. 501 et seq
                  25 C.J.S., Damages, § 87
                

Before KELLY, Chief Justice, and BAILEY, LUSK and RAND, Associate Justices.

Appeal from Circuit Court, Union County.

R.J. GREEN, Judge.

Action by Alexander Lane Shaw against Pacific Supply Co-Operative and another for damages sustained in an automobile accident. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

A.S. Grant, of Baker (Heilner, Smith, Grant & Fuchs, of Baker, on the brief), for appellants.

Blaine Hallock, of Baker (Hallock, Donald & Banta, of Baker, on the brief), for respondent.

LUSK, J.

While operating his automobile the plaintiff was injured in a collision with a truck and gasoline tank trailer operated by the defendants. A jury awarded the plaintiff a verdict, and the defendants have appealed from the consequent judgment.

It is contended that the trial judge erroneously submitted to the jury the question of damages for impairment to the plaintiff's earning capacity. The basis of this contention is that there is no evidence of such impairment. The plaintiff is a farmer in Union county. He does not own his farm but leases it, and had been accustomed to perform all the usual kinds of farm work. He was 55 years old at the time of his injury and a strong man in good health. His approximate gross income from his farm operation had been $6,000 a year, and his approximate net income $3,000 a year. He alleged, and introduced evidence tending to prove, that he was permanently injured as the result of the defendants' negligence, and was wholly unable thereafter to perform manual or physical labor. His life expectancy was shown. Briefly stated, the argument of defendants' counsel is that, since the only claim of permanent injury is that the plaintiff has been disabled from performing physical and manual labor, the measure of his damage for impaired earning capacity would be what it would cost him to hire a man to do his work, and that, as proof of such cost is lacking, the extent of the damage is wholly conjectural.

1-6. We do not agree. Impaired earning capacity differs from loss of earnings. The latter looks to the past, must be specially pleaded, and the amount of the loss ordinarily is capable of fairly definite ascertainment. The...